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HomeMy WebLinkAbout2006 S Finance - Equipment Installment Financing Agreement,- g~ EQUIPMENT INSTALLMENT FINANCING AGREEMENT This Equipment Installment Financing Agreement (the "Agreement's dated as of February 9, 2007, and entered into between Banc of America Public Capital Corp, a Kansas corporation ("Lender', and Orange County, North Carolina, a body corporate and politic existing under the laws of the State of North Carolina ("Purchaser'. WITNESSETH: WHEREAS, Purchaser is a duly and validly created, organized and existing public body politic, duly created..and existing-under and by virtue of the Constitution and laws of the State of North Carolina; and WHEREAS, Purchaser has the power, pursuant to Section 160A-20 of the General Statutes of North Carolina, to enter into installment contracts to finance the purchase of personal property, including property to be affixed or attached to real estate as fixtures; and WHEREAS, Purchaser has requested Lender to advance certain funds to enable Purchaser to finance the purchase and installation of certain Equipment described herein and Purchaser desires to obtain such advance from Lender and to purchase and install the Equipment pursuant to the terms and conditions set -forth herein; :axed WHEREAS, Purchaser is authorized under the constitution and laws of the State to enter into this Agreement hereto for the purposes set forth herein; and WHEREAS, the governing body of Purchaser has authorized the execution and delivery of this Agreement pursuant to a resolution adopted by the governing boazd of Purchaser on December 12 , ~ 20 06; and WHEREAS, the obligation of Purchaser to make Installment Payments (as hereinafter defined) and other payments required under this Agreement shall constitute a limited obligation payable solely from currently budgeted appropriations of Purchaser and shall- not constitute a pledge of the faith and credit of Purchaser within the meaning of any constitutional debt limitation or as otherwise prohibited by the North Carolina Constitution; and WHEREAS, in order to further secure the obligations of Purchaser hereunder, Purchaser desires to grant a security interest in the Equipment for the benefit of Lender; and WHEREAS, no deficiency judgment may be rendered against Purchaser in any action for breach of a contractual obligation under this Agreement, and the taxing power of Purchaser is not and may not be pledged in any way, directly or indirectly or contingently to secure any moneys due under this Agreement; and NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and in consideration of the premises hereinafter contained, the parties hereby agree as follows: #76569842 (BAPCC/N Carolina Installment Purch Agmt) ARTICLE I DEFINTTIONS Section 1.01. Definitions. The following terms will have the- meanings indicated below unless the context clearly requires otherwise: "Acquisition Amount" means the amount specified in the Schedule. "Acquisition Fund "means the fund established and held by Acquisition Fund Custodian pursuant to the Acquisition Fund Agreement, if any. "Acquisition Fund Agreement" means an Acquisition Fund and Account Control Agreement, substantially in the form of Exhibit A attached hereto, in form and substance acceptable to and executed by Purchaser, Lender and Acquisition Fund Custodian, pursuant to which an Acquisition Fund is established and administered. "Acquisition Fund Custodian " means Acquisition Fund Custodian identified in any Acquisition Fund Agreement, and its successors and assigns. "Acquisition Period " means, with respect to this Agreement, that period stated in the Schedule during which the Proceeds attributable to this Agreement may be expended on Equipment Gosts. "Agreement" means this Equipment Installment Financing Agreement, including the Schedule and the other exhibits hereto, together with any amendments and modifications to the Agreement pursuant to Section 12.05. "Code " means the Internal Revenue Code of 1986, as amended. Each reference to a Section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or in effect thereunder. "Commencement Date "means the date when Purchaser's obligation to make Installment Payments commences hereunder, which date shall be the earlier of (i) the date on which the Equipment listed in the Schedule is accepted by Purchaser in the manner described in Section 5.01, and (ii) the date on which the Acquisition Amount is deposited with Acquisition Fund Custodian. "Contract Rate "means the rate identified as such in the applicable Schedule. "Equipment" means the property listed in the Schedule and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment, such reference shall be deemed to include all such replacements, repairs, restorations, modifications and improvements of or to such Equipment. "Equipment Costs " means the total cost of the Equipment listed in the Schedule, including all soft costs such as freight, installation and taxes paid up front by Lender and all capitalizable consulting and training fees approved by Purchaser, legal fees, financing costs, and #765698v2 (BAPCC/N Carolina Installment Purch Agmt) other costs necessary to vest full, clear legal title to the Equipment in Purchaser, subject to the security interest granted to Lender in this Agreement; and otherwise incurred in connection with the financing of the Equipment as provided .herein; provided that (i) any such soft costs on a cumulative basis shall not exceed a percentage of the Equipment Costs approved by Lender; and (ii) in no event shall capitalizable delivery charges, installation charges, taxes and similar capitalizable soft costs relating to such Equipment be included without Lender's prior consent. "Event ofDefault" means an Event of Default described in Section 11.01. "Expense Fund " means the fund established and held by Acquisition Fund Custodian pursuant to the Acquisition Fund Agreement, if any. "Installment Payments " means the basic installment payments payable by Purchaser under this Agreement pursuant to Section 4.01, consisting of a principal component and an interest component. "Lender" means (a) the entity referred to as Lender in the first paragraph of this Agreement or (b) any assignee or transferee of any right, title or interest of Lender in and to the Equipment under this Agreement (including Installment Payments thereunder) pursuant to Section 10.01, but does not include any entity solely by reason of that entity retaining or assuming any obligation of Lender to perform under this Agreement. "Material Adverse Change " means (a) prior to the Utilization Period Expiration, a downgrade in Purchaser's external debt rating of two or more subgrades by either Moody's Investors Service, Inc, or Standard & Poor's Ratings Group or any equivalent successor credit rating agency, or any downgrade by either such agency that would cause Purchaser's credit rating to be below investment grade, and (b) thereafter, any change in Purchaser's creditworthiness that could have a material adverse effect on (i) the financial condition or operations of Purchaser, or (ii) Purchaser's ability to perform its obligations under this Agreement. "Optional Prepayment Date "means the date described in Section 4.01(b). "Original Term " means the period from the Commencement Date for this Agreement until the end of the fiscal year of Purchaser in effect at such Commencement Date. "Purchase Price " means, with respect to the Equipment listed on the Schedule, the amount that Purchaser may pay to Lender to prepay the outstanding Acquisition Amount as contemplated in Sections 4.01 and 8.01. "Purchase Term "means the Original Term and all Renewal Terms herein provided and for this Agreement means the period from the date hereof until this Agreement is terminated. "Purchaser" means the entity referred to as Purchaser in the first paragraph of this Agreement. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) "Renewal Terms "means the renewal terms of this Agreement, each having a duration of one year and a term coextensive with Purchaser's fiscal year, as specified in the Schedule applicable thereto.. "Schedule "means the Schedule of Property substantially in the form of Exhibit B hereto together with the Installment Payment Schedule attached thereto substantially in the form of Exhibit B-1 hereto. "State "means the State of North Carolina. "Utilization Period Expiration " means, if this Agreement is not funded under an Acquisition Fund Agreement, the date by which Purchaser must deliver an Acceptance Certificate for the Equipment~under this Agreement as indicated in Section 3.04(b). "Vendor" means the manufacturer or supplier of the Equipment or any other person as well as the agents or dealers of the manufacturer or supplier with whom Purchaser has arranged the acquisition of the Equipment to be financed by Lender pursuant to this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES OF PURCHASER Section 2.01. Representations and Covenants of Purchaser. Purchaser represents, covenants and warrants for the benefit of Lender on the date hereof as follows: (a) Purchaser is a public body politic duly created and existing under the laws of the State of North Carolina as a political subdivision of the State of North Carolina, and has all powers necessary to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder. (b) Purchaser has duly authorized the execution and delivery of this Agreement by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default. exists at the date hereof. (d) Purchaser will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. (e) Purchaser has complied with such .public bidding requirements as may be applicable to this Agreement and the acquisition by Purchaser of the Equipment as provided herein. (fl During the Purchase Term, the Equipment will be used by Purchaser only for the purpose of performing essential governmental or proprietary functions of Purchaser consistent with the permissible scope of Purchaser's authority. Purchaser does not intend to sell or #765698v2 (BAPCGN Carolina Installment Purch Agmt) 4 otherwise dispose of the Equipment or any interest therein prior to the last Installment Payment (including all Renewal Terms) scheduled to be paid under this Agreement. (g) Purchaser has kept, and throughout the Purchase Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lender (i) annual audited financial statements (including (1) a balance sheet, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows and notes, and (4) schedules and attachments to the financial statements) within 270 days of its fiscal year end, (ii} such other financial statements and information as Lender may reasonably request, and (iii) its annual budget for the following fiscal year within 30 days of its final. approval. The financial statements described in subsection (i) shall be accompanied by an unqualified opinion of Purchaser's auditor. Credit information relating to Purchaser maybe disseminated among Lender and any of its affiliates and any of their respective successors and assigns. (h) The Equipment described above is essential to the functions of Purchaser or to the services Purchaser provides its citizens; Purchaser has an immediate need for the Equipment listed on the Schedule and expects to make immediate use of the Equipment listed on the Schedule, which will be used by Purchaser only for the purpose of performing one or more of Purchaser's governmental or proprietary functions consistent with the permissible scope of its authority. Purchaser's need for the Equipment is not temporary and Purchaser does not expect the need for any item of the Equipment to diminish during the Purchase Term to such item. Purchaser expects and anticipates adequate funds to be available for all future payments due hereunder after the current budgetary period. (i) The payment of the Installment Payments or any portion thereof is not directly or indirectly (x) secured by any interest in property used or to be-used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Purchaser) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will'not be used, directly or indirectly, in any activity carried on by any person other. than a state or local governmental unit. No portion of the Equipment Costs for the Equipment will be used, directly or indirectly, to make or finance loans to any person other than Purchaser. Purchaser has not entered into any management or other service contract with respect to the use. and operation of the Equipment. (j) There is no pending litigation, tax claim,- proceeding or dispute that may adversely affect Purchaser's financial condition or impairs its ability to perform its obligations hereunder. Purchaser will, at its expense, maintain its legal existence in good standing and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lender may reasonably request in order to protect Lender's security interest in the Equipment and Lender's rights and benefits under this Agreement. #765698v2 (BAPCC/N Cazolina Installment Purch Agmt) :, ARTICLE III PURCHASE OF EQUIPMENT Section 3.01. Purchase of Equipment. Subject to the terms of this Agreement and the Schedule, Lender agrees to advance the Acquisition Amount to acquire the Equipment. The Purchase Term may be continued, solely at the option of Purchaser, at the end of the Original Term or any Renewal Term for the next succeeding Renewal Terns up to the maximum Purchase Term. At the end of the Original Term and at the end of each Renewal Term until the maximum Purchase Term has been completed, Purchaser shall be deemed to have exercised its option to continue this Agreement for the next Renewal Term unless Purchaser shall have terminated this Agreement pursuant to Section 3.03 or Section 4.01(b). The terms and conditions during any Renewal Term shall be the same as the terms and conditions during the Original Term, except that the Installment Payments shall be as provided in the Schedule. Section 3.02. Continuation of Purchase Term• Appropriation. Purchaser intends, subject to Section 3.03, to continue the Purchase Term of this Agreement through the Original Term and all Renewal Terms and to pay the Installment Payments thereunder. Purchaser affirms that sufficient funds are available for the current fiscal year, and Purchaser reasonably believes that an amount sufficient to make all Installment Payments during the entire Purchase Term can be obtained from legally available funds of Purchaser. The finance officer, manager or other appropriate official of Purchaser (hereinafter "Manager's shall include in the initial proposal for each of Purchaser's annual budgets the amount of all Installment Payments due under this Agreement and other payments coming due during the .fiscal year to which such budget is applicable. Notwithstanding that Manager includes an appropriation for Installment Payments and other payments in a proposed budget, Purchaser may .terminate all its obligations hereunder and under this Agreement by not appropriating sufficient funds to make the scheduled Installment Payments and other payments. In the event the governing body of Purchaser determines not to appropriate in its budget an amount- sufficient to pay all Installment Payments and reasonably estimated other payments coming due in the applicable fiscal year, the governing body of Purchaser shall adopt a resolution specifically deleting such appropriation from the proposed budget for that fiscal year. Such resolution shall be adopted by a vote identifying those voting for and against and abstaining from the resolution, and shall be recorded in the minutes of the governing body. A copy of such resolution shall be promptly sent to Lender. Such failure to .appropriate shall constitute an Event of Default. Section 3.03. Nonappropriation. (a) Purchaser is obligated only to pay such Installment Payments as may lawfully be made from funds budgeted and appropriated for that purpose during Purchaser's then current fiscal year. Should Purchaser fail to budget, appropriate or otherwise make available funds to pay Installment Payments following the then current Original Term or Renewal Term, this Agreement shall be deemed terminated at the end of the then current Original Term or Renewal Term. If the amount equal to the Installment Payments which will be due during the next fiscal year has not been appropriated by Purchaser in its budget, Manager shall deliver to Lender, within ten (10) days after the adoption of Purchaser's budget for such fiscal year, but not later #765698 V2 (BAPCCM Carolina Installment Purch Agmt) than fifteen (15) days after the start of such fiscal year, a certificate from Manager of Purchaser stating that Purchaser did not make such appropriation. Purchaser agrees to deliver notice to Lender of such termination promptly after any decision to non-appropriate is made, but failure to give such notice shall not extend the term beyond such Original Term or Renewal Term. If this Agreement is terminated in accordance with this Section, Purchaser agrees to peaceably deliver the Equipment to Lender at the location(s) to be specified by Lender. (b) No provision of this Agreement shall be construed or interpreted as creating a pledge of the faith and credit of Purchaser within the meaning of any constitutional debt limitation, This Agreement shall not directly or indirectly or contingently obligate Purchaser to make any .payments beyond.. the amount appropriated, if any, in the sole discretion of Purchaser for any fiscal year in which-this Agreement shall be in effect. Purchaser may at the end of any fiscal year terminate its future Installment Payment obligations under this Agreement if Purchaser has not appropriated sufficient funds to make the next fiscal year's scheduled Installment Payments. No provision. of this Agreement shall be construed to pledge or create a lien on any class or source of Purchaser's moneys other than the Purchase Price, the Equipment or any Acquisition Fund. To the extent of any conflict between this Section and any other provision of this Agreement, this Section shall take priority. (c) This Agreement constitutes an installment contract and security agreement pursuant to Section 160A-20 and Article 9 of Chapter 25 (the "Uniform Commercial Code - Secured Transactions") of the General Statutes of North Carolina. Section 3.04. Conditions to Lender's Performance. (a) As a prerequisite to the performance by Lender of any of its obligations pursuant to this Agreement, Purchaser shall deliver to Lender the following: (i) A fully completed Schedule, executed by Purchaser; (ii) An Acquisition Fund Agreement, executed by Purchaser and Acquisition Fund Custodian, unless Lender pays 100% of the Acquisition Amount directly to the Vendor upon execution of this Agreement, together with an Arbitrage and Tax Certificate in the form attached thereto as Schedule 2, or such other certification to tax matters that is acceptable to Lender and Purchaser's counsel; (iii) A Certificate executed by the Clerk or Secretary or other comparable officer of Purchaser, in substantially the form attached hereto as Exhibit C, completed to the satisfaction of Lender; (iv) A certified copy of a resolution, ordinance or other official action of Purchaser's governing body authorizing the execution and delivery of this Agreement and performance by Purchaser of its obligations hereunder; (v) An opinion of counsel to Purchaser in substantially the form attached hereto as Exhibit D respecting this Agreement and otherwise satisfactory to Lender; (vi) Evidence of insurance as required by Section 7.02 hereof; #765698v2 (BAPCC/N Carolina Installment Punch Agmt) (vii) All documents, including financing statements; affidavits, notices and similar instruments, in form satisfactory to Lender, which Lender deems necessary or appropriate at that time pursuant to Section 6.02; (viii) If applicable, designation of this Agreement as "qualified tax-exempt obligations" for the purposes of Section 265(b)(3) of the Code; (ix) A copy of a fully completed and executed Form 8038-G; (x) (A) If the maximum Purchase Term under this Agreement is greater than five (5) years,. and (B) the Purchase Price exceeds the lesser of $500,000 or 1/10' of 1% of the assessed value. of'property subject to taxation by Purchaser, evidence of approval of this Agreement by the North Carolina Local Government Commission (the "LGC'~; (xi) Such other items, if any, as are reasonably required by Lender. (b) In addition, the performance by Lender of any of its obligations hereunder shall be subject to: (i) no material adverse change in the financial condition of Purchaser since the date of this Agreement, (ii) no Event of Default having occurred, and (iii) if no Acquisition Fund has been established, the Equipment must be accepted by Purchaser no later than the date listed as the Utilization Period in the Schedule. (c) Subject to satisfaction of the foregoing, Lender will pay the Acquisition Amount for Equipment described in the Schedule to the Vendor for the purchase of the Equipment, or any portion thereof, or, if authorized by Purchaser's governing body, will reimburse Purchaser for the prior payment of any such Acquisition Amounts by Purchaser to the Vendor for the purchase of the Equipment, upon receipt of the documents described in Sections 5.01(a) and (b); or if an Acquisition Fund has been established pursuant to an Acquisition Fund Agreement, Lender will deposit the Acquisition Amount for Equipment described in the Schedule with Acquisition Fund Custodian, to be disbursed in accordance with the terms of the Acquisition Fund Agreement. ARTICLE IV INSTALLMENT PAYMENTS Section 4.01. Installment Payments; Prepayments; Prena~. (a) ,.Subject.. to Section 3.03, Purchaser shall promptly pay Installment Payments, in lawful money of the United States of America, to Lender on the dates and in such amounts as provided in the Schedule. Purchaser shall pay Lender a charge on any Installment Payment not paid on the date such payment is due at a rate equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law, whichever is less, from such date. Purchaser shall not permit the federal government to guarantee any Installment Payments. Installment Payments consist of principal and interest payments as more fully detailed on the Schedule. (b) Purchaser shall have the option to prepay its obligations under this Agreement on and after the date specified as the Optional Prepayment Commencement Date in the Schedule (the "Optional Prepayment Date', on the Installment Payment Dates specified in such Schedule, upon not less than 30 days' prior written notice, and upon payment in full of the #765698v2 (BAPCC/N Carolina Installment Purch Agmt) Installment Payments then due under such Schedule, as well as the applicable Purchase Price, which may include a prepayment premium on the unpaid balance as set forth in the Schedule. After payment of all amounts owed with respect to this Agreement, Purchaser will own the Equipment free and clear of any interest of Lender therein, and Lender's security interests in and to such Equipment will be terminated. Section 4.02. Interest and Principal Components. A portion of each Installment Payment is paid as, and represents payment of, interest at the rate set forth in the Schedule, and the balance of each Installment Payment is paid as, and represents payment of, principal. The Installment Payment Schedule sets forth the principal and interest components of each " Installment Payment payable under this Agreement during the Purchase Term. Section 4.03. Reserved. Section 4.04. Tax Covenants. (a) Purchaser agrees that it will not take any action that would cause the interest component of Installment Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes, nor will it omit to take or cause to be taken, in timely manner, any action, which omission would cause the interest component of Installment Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes. (b) In the event that Purchaser does not spend the moneys in the Acquisition Fund within six (6) months of the date the deposit is made pursuant to Section 3.04(c), Purchaser will, if required by section 148(fj of the Code to pay rebate: (i) establish a Rebate Account and deposit the Rebate Amount (as defined in Section 1.148-3(b) of the Federal Income Tax Regulations) not less frequently than once per year after the applicable Commencement Date; and (ii) rebate to the United States, not less frequently than once every five (5) years after the applicable Commencement Date, an amount equal to at least 90% of the Rebate Amount and within 60 days after payment of all Installment Payments or the Purchase Price as provided in Section 10.01(a) hereof, 100% of the Rebate Amount, as required by the Code and any regulations promulgated thereunder. Purchaser shall determine the Rebate Amount, if any, at least every year and upon payment of all Installment Payments or the Purchase Price and shall maintain such determination, together with any supporting documentation required to calculate the Rebate Amount, until six (6) years after the ~ date of the final payment of the Installment Payments or the Purchase Price. (c) Purchaser represents that the Equipment will not be used in such a manner so as to cause this Agreement to constitute "private activity bonds" as defined in Section 141(a) of the Code and Sections 1.141-0 through 1.141-16 of the Regulations. (d) . This Agreement will not be federally guaranteed within the meaning of Section 149(b) of the Code. Purchaser shall file, or cause to be filed, the requisite Form 8038-G on or before the 15~' day of the second month after the calendar quarter in which this Agreement is executed. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) Section 4.05. Event of Taxability. Upon the occurrence of an Event of Taxability, the interest component shall be at a Taxable Rate retroactive to the date as of which the interest component is determined by the Internal Revenue Service to be includible in the gross income of the owner or owners thereof for federal income tax purposes, and Purchaser will pay such additional amount as will result in the owner receiving the interest component at the Taxable Rate identified in this Agreement. For purposes of this Section, "Event of Taxability" means a determination that the interest component is includible for federal income tax purposes in the gross income of the owner thereof due to Purchaser's action or failure to take any action. Section 4.06. Mandatory Prepayment. If the Acquisition Amount is deposited into an Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition Period and not applied to Equipment Costs, shall be applied by Lender on the next Installment Payment date, pro rata, to the prepayment of the principal component of the outstanding Installment Payments due under the applicable Schedule. ARTICLE V ACCEPTANCE OF EQUIPMENT Section 5.01. Delivery. Installation and Acceptance of Eq~ment. (a) Purchaser shall order the Equipment, cause the Equipment to be delivered and installed at the location specified in the Schedule and pay any and all delivery and installation costs and other Equipment Costs in connection therewith. When the Equipment listed in the Schedule has been delivered and installed, Purchaser shall promptly accept such Equipment and evidence such acceptance by executing and delivering to Lender an Acceptance Certificate in the form attached hereto as Exhibit E. (b) Purchaser shall deliver to Lender original invoices and bills of sale (if title to such Equipment has passed to Purchaser) relating to each item of Equipment accepted by Purchaser. With respect to Equipment not purchased through an Acquisition Fund, Lender shall, upon receipt of an Acceptance Certificate from Purchaser, prepare a Schedule of Property and Installment Payment Schedule in the forms attached hereto as Exhibits B-1 and B-2. Purchaser shall execute and deliver such Schedules to Lender within 5 business days of receipt. Section 5.02.. Quiet ..Enjoyment of Equipment. -So long as Purchaser is not in default under this Agreement, neither Lender nor any entity claiming by, through or under Lender, shall interfere with Purchaser's quiet use and enjoyment of the Equipment during the Purchase Term. Section 5.03. Location; Inspection. Once installed, no item of the Equipment will be relocated from the base location specified for it in the Schedule without Lender's consent, which consent shall not be unreasonably withheld. Lender shall have the right at all reasonable times during regular business hours to enter into and upon the property of Purchaser for the purpose of inspecting the Equipment. Section 5.04. Use and Maintenance of the Equipment. Purchaser will not install, use, operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 10 in a manner contrary to that contemplated by this Agreement. Purchaser shall provide all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Purchaser agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative, executive, administrative, or judicial body; provided that Purchaser may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lender, adversely affect the interest (including the reversionary interest) of Lender in and to the Equipment or its interest or rights under this Agreement. Purchaser agrees that it will maintain, preserve, and keep the Equipment in good repair and working order, in a condition comparable to that recommended by the manufacturer. In all cases, Purchaser agrees ~ to pay any costs' necessary for the manufactures' to re-certify the Equipment as eligible for manufacturer's maintenance upon the return of or foreclosure upon the Equipment to Lender as provided for herein. Purchaser shall not alter any item of Equipment or install any accessory, equipment or device on an item of Equipment if that would impair any applicable warranty, the originally intended function or the value of that Equipment. All repairs, parts, accessories, equipment and devices furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall thereupon become subject to the security interest of Lender. ARTICLE VI SECURITY INTEREST IN EQUIPMENT Section 6.01. Title to the Equipment. During the Purchase Term, and so long as Purchaser is not in default under Article XI hereof, all right, title and interest in and to each item of the Equipment shall be vested in Purchaser immediately upon its acceptance of each item of Equipment, subject to the terms and conditions of this Agreement. Purchaser shall at all times protect and defend, at its own cost and expense, its title in and to the Equipment from and against all claims, liens and legal processes of its creditors, and keep all Equipment free and clear of all such claims, liens and processes other than the security interest granted under this Agreement. Upon the occurrence of an Event of Default or upon termination of this Agreement pursuant to Section 3.03 hereof, full and unencumbered legal title to the Equipment shall pass to Lender, and Purchaser shall have no further interest therein. In addition, upon the occurrence of such an Event of Default or such termination, Purchaser shall execute and deliver to Lender such documents as Lender may request to evidence the passage of such legal title to Lender and the ~termiriation of Purchaser's interest therein, and upon request by I;ender' shall deliver possession of the Equipment to Lender in accordance with Section 11.02. Upon final payment of any Installment Payments or prepayment thereof pursuant to Section 4.01(b), Lender's security interest or other interest in the related Equipment shall terminate, and Lender shall execute and deliver to Purchaser such documents as Purchaser may request to evidence the termination of Lender's security interest in-the Equipment. Section 6.02. Security Interest. To secure the payment of all of Purchaser's obligations under this Agreement, Purchaser grants to Lender a security interest constituting a first lien on (a) the Equipment and in any and all additions, accessions, repairs, replacements, substitutions, and modifications to such Equipment, (b) moneys and investments held from time to time in the #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 11 Acquisition Fund and (c) any and all proceeds of any of the foregoing, including any insurance proceeds paid because of loss or damage to the Equipment to the extent necessary to secure Purchaser's payment obligations to Lender under this Agreement. Purchaser shall cause to be filed, at Purchaser's expense, financing statements and -other related documents that are necessary under Article 9 of Chapter 25 (the "Uniform Commercial Code - Secured Transactions") of the General Statutes of North Cazolina to perfect a first lien security interest by filing and to maintain that first lien security interest in perfected form. Lender is authorized to (i) file financing statements as specified by the Uniform Commercial Code to perfect or maintain Lender's security interest granted hereby and (ii) add, modify or delete any items shown on the financing statement to reflect the actual Equipment purchased by Purchaser. If the Equipment is or includes one. or .more, motor vehicles, the ownership or lienholder status of which is or aze evidenced by a certificate of title(s), Purchaser shall "cauuse Lende'r's lien to be properly shown on such title(s) as a first.lien security interest. Purchaser agrees to execute and authorizes Lender to file such other notices of assignment, chattel mortgages, financing statements and other documents, in form satisfactory to Lender, which Lender deems necessary or appropriate to establish and maintain Lender's security interest in the Equipment, the Acquisition Fund and the proceeds thereof. Upon the occurrence of an Event of Default, foil and unencumbered legal title to the Equipment shall pass to Lender, and Purchaser shall have no further interest therein. In addition, upon the occurrence of such an Event of Default, Purchaser shall execute and deliver to Lender such documents as Lender may request to evidence the passage of such legal title to ,. Lender and the termination of. Purchaser's interest therein, and upon .request by Lender shall deliver possession of the Equipment to Lender in accordance with Section 11.02. Upon termination of this Agreement and payment and performance in full of all of Purchaser's obligations to Lender thereunder, Lender's security interest or other interest in the Equipment purchased pursuant to this Agreement shall terminate, and Lender shall execute and deliver to Purchaser such documents as Purchaser may request to evidence the termination of Lender's security interest in the Equipment. Section 6.03. Personal Property. The Equipment is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. Upon the request of Lender, Purchaser will, at Purchaser's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building. ARTICLE VII COVENANTS OF PURCHASER Article 7.01. Liens. Taxes. Other Governmental Chaz~es and Utility Charges. Purchaser shall keep the Equipment free of all levies, liens, and encumbrances except those created by this Agreement. The parties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purpose of Purchaser and that the Equipment will therefore be exempt from all property taxes. If the use, possession or acquisition of any Equipment is nevertheless determined to be subject to taxation, Purchaser shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to such Equipment. Purchaser shall pay all utility and other charges incurred in the use and maintenance of the Equipment. Purchaser shall pay such taxes or charges as the same may become due; provided #765698v2 (BAPCC/N Carolina Installment Porch Agmt) 12 that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Purchaser shall be obligated to pay only such installments as accrue during each Purchase Term. Section 7.02. Insurance. Purchaser shall during each Purchase Term maintain or cause to be maintained (a) casualty insurance naming Lender and its assigns as loss payee and insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State, and any other risks reasonably required by Lender, in an amount at least equal to the then applicable Purchase Price of the Equipment; (b) liability insurance naming Lender as additional insured that protects Lender from liability in all_events in form and amount satisfactory to Lender; and (c) worker's compensation coverage as required by the laws of the State; provided that, with Lender's prior written consent, in lieu of policies of insurance written by commercial insurance companies meeting the requirements of this Section, Purchaser may maintain a program of self-insurance or participate in group risk financing programs, risk pools, risk retention groups, purchasing groups and captive insurance companies, and in state or federal insurance programs. Purchaser shall furnish to Lender evidence of such insurance or self-insurance coverage at least annually throughout the Purchase Term. Purchaser shall not cancel or modify such insurance or other coverage in any way that would affect the interests of Lender without first giving written notice thereof to Lender at least 30 days in advance of such cancellation or modification. Section 7.03. -Risk of Loss. Whether or not covered by insurance or self-insurance, Purchaser hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any persons or property arising from the Equipment from any cause whatsoever, and no such loss of or damage to or liability arising from the Equipment shall relieve Purchaser of the obligation to make the Installment Payments or to perform any other obligation under this Agreement. Whether or not covered by insurance or self-insurance, Purchaser hereby agrees to reimburse Lender (to the fullest extent permitted by applicable law, but only from legally available funds) and the LGC (if this Agreement requires LGC approval pursuant to Section 3.04(a)(x) hereof) for any and all liabilities, obligations, losses, costs, claims, taxes or damages suffered or incurred by Lender, regardless of the cause thereof and all expenses incurred in connection therewith (including, without limitation, counsel fees and expenses, and penalties connected therewith imposed on interest received) arising out of or as a result of (a) entering into of this Agreement or any of the transactions contemplated hereby, (b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery, acceptance, rejection, storage or return of any item .the Equipment, (c) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and/or (d) the breach of any covenant of Purchaser in connection with this Agreement or any material misrepresentation provided by Purchaser in connection with this Agreement. The provisions of this paragraph shall continue in full force and effect notwithstanding the full payment of all obligations under this Agreement or the termination of the Purchase Term for any reason. Section 7.04. Advances. In the event Purchaser shall fail to keep the Equipment in good repair and working order, Lender may, but shall be under no obligation to, maintain and repair the Equipment and pay the cost thereof. All amounts so advanced by Lender shall constitute additional rent for the then current Original Term or Renewal Term and Purchaser covenants and #765698v2 (BAPCC/N Carolina Installment Pwch Agmt) 13 agrees to pay such amounts so advanced by Lender with interest thereon from the due date until paid at a rate equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law, whichever is less. ARTICLE VIII DAMAGE, DESTRUCTION AND CONDEMNATION Section 8.01. Damase, Destruction and Condemnation. If, prior to the termination of the Purchase Term, (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or ~ by -any- person, firm or corporation acting pursuant to governmental- authority, Purchaser and Lender will cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Purchaser. Notwithstanding the foregoing, in the event of such damage or destruction, Purchaser shall have the option to prepay its obligations under this Agreement by prepaying all of the Purchase Price then due under this Agreement on the day specified in Purchaser's notice to Lender of its exercise of the prepayment option (which shall be the earlier of the next Installment Payment Date or 60 days after the event resulting in such damage, destruction or condemnation). If Purchaser elects to replace any item of the Equipment (the "Replaced Equipment's pursuant to this Section, the replacement equipment (the "Replacement Equipment's shall be of similar type, utility and condition to the Replaced Equipment and shall be of equal or greater value than the Replaced Equipment. Purchaser hereby grants Lender a first priority security interest in any such Replacement Equipment. Purchaser shall represent, warrant and covenant to Lender that each item of Replacement Equipment is free and clear of all claims, liens, security interests and encumbrances, excepting only those liens created by or through Lender, and shall provide to Lender any and all documents as Lender may reasonably request in connection with the replacement, including, but not limited to, documentation in form and substance satisfactory to Lender evidencing Lender's security interest in the Replacement Equipment. Lender and Purchaser hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this paragraph shall constitute "Equipment" for purposes of this Agreement. Purchaser shall complete the documentation of Replacement Equipment on or before the .next Installment Payment date after the occurrence of a casualty event, or be required to exercise the Purchase Option with respect to the damaged equipment. For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof. Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 8.01, Purchaser shall either (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) pay #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 14 or cause to be paid to Lender the amount of the then applicable Purchase Price for the Equipment, and, upon such payment, the applicable Purchase Term shall terminate and Lender's security interest in the Equipment shall terminate as provided in Section 6.01 hereof. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after purchasing such Equipment and such other Equipment shall be retained by Purchaser. If Purchaser shall make any payments pursuant to this Section, Purchaser shall not be entitled to any reimbursement therefor from Lender nor shall Purchaser be entitled to any diminution of the amounts payable under Article TV. ARTICLE IX WARRANTIES Section 9.01. Disclaimer of Warranties. LENDER MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIl'MENT OR ANY COMPONENT PART THEREOF TO PURCHASER OR IN REGARD TO ANY OTHER CIRCUMSTANCE WHATSOEVER WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR REPRESENTATION WITH RESPECT TO: THE MERCHANTABILITY OR THE FITNESS OR SUITABILITY THEREOF FOR ANY PURPOSE; THE VALUE, DESIGN OR CONDITION THEREOF; THE SAFETY, WORKMANSHIP OR QUALITY THEREOF; COMPLIANCE THEREOF WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO; ANY LATENT DEFECT; THE TITLE TO OR INTEREST OF LENDER THEREIN; THE ABILITY THEREOF TO PERFORM ANY FUNCTION; THAT THE PROCEEDS OF THIS AGREEMENT WILL BE SUFFICIENT (TOGETHER WITH ANY OTHER AVAILABLE FUNDS OF PURCHASER) TO PAY THE COST OF ACQUIRING OR INSTALLING THE EQUIPMENT; OR ANY OTHER CHARACTERISTICS OF THE EQUIPMENT, IT BEING AGREED THAT ALL RISKS RELATING TO THE EQUIPMENT, THE INSTALLATION AND OPERATION THEREOF OR THE TRANSACTIONS CONTEMPLATED HEREBY ARE TO BE BORNE BY PURCHASER, AND THE BENEFITS OF ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF LENDER ARE HEREBY WAIVED BY PURCHASER. Purchaser's acquisition of the Equipment under this Agreement shall be on an "as is, where is" basis, and with all faults. In no event shall Lender be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Agreement, the Equipment or the existence, furnishing, functioning or Purchaser's use of any item, product or service provided for in this Agreement. Section 9.02. Vendor's Warranties: Lender hereby irrevocably appoints Purchaser its agent and attorney-in-fact during each Purchase Term, so long as Purchaser shall not be in default under this Agreement, to assert from time to time whatever claims and rights (including without limitation warranties, if any) relating to the Equipment that Lender may have against Vendor. Purchaser's sole remedy for the breach of such warranty, indemnification or representation shall be against the Vendor of the Equipment, and not against Lender. Any such matter shall not have any effect whatsoever on the rights and obligations of Lender with respect to this Agreement, including the right to receive full and timely payments under this Agreement. Purchaser expressly acknowledges that Lender makes, and has made, no representations or #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 15 warranties whatsoever as to the existence or the availability of such warranties relating to the Equipment. ARTICLE X ASSIGNMENTS Section 10.01. Assignment by Lender. (a) Lender may, at any time and from time to time, assign all or any part of its interest in the Equipment or this Agreement, including, without limitation, Lender's rights to receive Installment Payments payable to Lender hereunder or thereunder, in accordance with this Section ..10.01.: Any .assignment .made by Lender or any subsequent assignee shall not purport to convey any greater interest or rights than those held by Lender pursuant to this Agreement. Any assignment by Lender may be to a bank, insurance company, or similaz financial institution or any other entity, provided that any such other entity shall be approved by the LGC if this Agreement requires LGC approval pursuant to Section 3.04(x) hereof. Purchaser agrees that this Agreement may become part of a pool of obligations at Lender's or its assignee's option. In addition, Lender or its assignees may assign or reassign all or any part of this Agreement, including the assignment or reassignment of any partial interest through the use of certificates evidencing participation interests in this Agreement without the consent of Purchaser or the LGC. Purchaser shall not have the right to and shall not assert against any assignee any claim, counterclaim or other right Purchaser may have against Lender or Vendor. Notwithstanding the foregoing, unless to an affiliate controlling, controlled by or under common control with Lender, no assignment or reassignment of Lender's interest in the Agreement shall be effective unless and until Purchaser shall receive notice of such assignment or reassignment disclosing the name and address of each such assignee. (b) Purchaser further agrees that Lender's interest in this Agreement maybe assigned in whole or in part upon terms which provide in effect that the assignor or assignee will act as a collection and paying agent for any holders of certificates of participation in this Agreement, provided. Purchaser receives notice of such assignment and such collection and paying agent covenants and agrees to maintain for the full remaining term of this Agreement a written record of each assignment and reassignment of such certificates of participation. (c) Purchaser agrees to execute any document reasonably required in connection with any assignment. If Lender notifies Purchaser of its intent to assign this Agreement, Purchaser agrees that it shall.; execute and deliver to Lender a Notice and Acknowledgement of Assignment substantially in the- form of Exhibit F attached to this Agreement within five (5) business days after its receipt of such request.. Any assignor must provide notice of any assignment to Purchaser, and Purchaser shall keep a complete and accurate record of all assignments as required by the Code. After the giving of any such notice, Purchaser shall thereafter make all payments in accordance with such notice to the assignee named therein and shall, if so requested, acknowledge such assignment in writing, but such acknowledgment shall in no way be deemed necessary to make the assignment effective. (d) Lender represents and warrants that it is familiaz with federal and North Carolina legislation, rules and regulations as to limitations upon the public distribution of securities that #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 16 have not been registered under the Securities Act of 1933, as amended, and that it is entering into this Agreement for its own account and has no present intention of making any sale or other distribution of this Agreement in violation of such legislation, rules or regulations. Lender represents that it is familiar with the operations and financial condition of Purchaser, based upon information furnished to Lender by Purchaser, and has made such inquiries as it deems appropriate in connection with this Agreement. Section 10.02. Assignment and Subleasing by Purchaser. None of Purchaser's right, title, and interest in, to and under this Agreement or any portion of the Equipment may be assigned or encumbered by Purchaser for ariy reason. ARTICLE XI ; . EVENTS OF DEFAULT Section 11.01. Events of Default Defined. Any of the following events shall constitute an "Event of Default" under this Agreement: (a) Failure by Purchaser to pay any Installment Payment or other payment required to be paid under this Agreement within 10 days of the date when due as specified herein; (b) Failure by Purchaser to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in subparagraph (a) above, for a period of 30 days after written notice specifying such failure and requesting that it be remedied is given to Purchaser by Lender, unless Lender shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lender will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Purchaser within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Purchaser in or pursuant to this Agreement or its execution, delivery or performance shall prove to have been false, incorrect, misleading, or breached in any material respect on the date when made; (d) Any default occurs under any other agreement for borrowing money, lease financing of property or otherwise receiving credit under which Purchaser is an obligor under which there is outstanding, owing or committed an aggregate amount of at least 10% of Purchaser's- aggregate.. current long- and short-term indebtedness, if such .default consists. of (i) the failure to pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder and gives the holder of the indebtedness the right to accelerate the indebtedness; (e) Purchaser shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Purchaser, or of all or a substantial part of the assets of Purchaser, (ii} be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Purchaser in any bankruptcy, reorganization or insolvency proceeding; #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 17 (f) Purchaser adopts a budget for any fiscal year during the term hereof which does not include moneys sufficient to pay all Installment Payments and any other sums coming due hereunder for that fiscal year, or amends a previously adopted budget to delete the funds to make such payments; or (g) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or Purchaser or of all or a substantial part of the assets of Purchaser, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of 30 consecutive days. YSection 11:02: Remedies on Default. Whenever any Event flf Default exists; Lender shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) By written notice to Purchaser, Lender may declare all Installment Payments payable by Purchaser pursuant to this Agreement and other amounts payable by Purchaser hereunder to the end of the then current Original Term or Renewal Term to be due; - (b) With or without terminating the Purchase Term, Lender may enter the premises where the Equipment listed in this Agreement is located and retake possession of such Equipment or require. Purchaser. at Purchaser's expense to promptly return any or all of such Equipment to the possession of Lender at such place within the United States as Lender shall specify, and sell or lease such Equipment or, for the account of Purchaser, sublease such Equipment, continuing to hold Purchaser liable, but solely from legally available funds, for the difference between (i) the Installment Payments payable by Purchaser pursuant to this Agreement and other amounts related to this Agreement or the Equipment that are payable by. Purchaser to the end of the then current Original Term or Renewal Term, as the case maybe, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lender in exercising its remedies hereunder, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and. all brokerage, auctioneer's and attorney's fees), subject, however, to the provisions of Section 3.03. The exercise of any such remedies respecting any such Event of Default shall not relieve Purchaser of any other liabilities hereunder or the Equipment listed therein; and (c) Proceed by appropriate court action to enforce performance by Purchaser of the applicable covenants of thisAgreement or to recover for the breach thereof; provided, however, that nothing herein shall be deemed to allow any. judgment for a deficiency or waive any provision of N.C.G.S. § 160A-20 or any defense Purchaser may otherwise have; (d) Exercise all the rights and remedies of a secured party or creditor under the Uniform Commercial Code of the State of North Carolina and the general laws of the State of North Carolina with respect to the enforcement of the security interest granted or reserved hereunder, including, without limitation, to the extent permitted by law, take possession of any collateral without any court order or other process of law and without liability for entering the premises and sell, lease, sublease or make other disposition of the same in a commercially reasonable manner for the account of Purchaser, and apply the proceeds of any such sale, lease, #765698v2 (BAPCCJN Carolina Installment Purch Agmt) 18 sublease or other disposition, after deducting all costs and expenses, including court costs and attorneys' fees, incurred with the recovery, repair, storage and other sale, lease, sublease or other disposition costs, toward the balance due under this Agreement, and, thereafter, shall pay any remaining proceeds to Purchaser; (e) Terminate this Agreement as to all or any part of the Equipment and use, operate, lease or hold all or any part of the Equipment as Lender in its sole discretion may decide; (f) Require Purchaser to deliver the Equipment, at Purchaser's sole expense, to any location within the State of North Carolina designated by Lender, and take possession of any proceeds of the Equipment, including Net Proceeds; or .._,. (g) Lender may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under this Agreement or as a secured party in any or all of the Equipment subject to this Agreement. Section 11.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lender is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy now or hereafter existing at law or in equity.. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power maybe exercised .:.from: time to .time and as often as may be deemed expedient. In order. to entitle Lender to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other than such notice as may be required in this Article. ARTICLE XII MISCELLANEOUS Section 12.01. Notices. All notices, certificates or other communications under this Agreement shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with electronic .confirmation) to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notices to such party) and to any assignee at its address as it appears on the registration books maintained by Purchaser. ...Section 12.02.. Binding Effect. This,Agreement shall inure to the benefit of and. shall be binding upon Lender and Purchaser and their respective successors and assigns. Section 12.03. Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 12.04. Amendments, Changes and Modifications. This Agreement (including the Schedule) may only be amended by Lender and Purchaser in writing. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 19 Section 12.05.. Execution in Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrtunent. Section 12.06. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State. Section 12.07. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) 20 In Witness Whereof, Lender and Purchaser have caused this Agreement to be executed in their names by their duly authorized representatives as ofthe date first above written. LENDER: Banc of America Public Capital Corp 2059 Northlake Pkwy., 4th Floor Tucker, Georgia 30084 Attention: Contract Administration Fax No.: (770) 270-8454 By: ~ir~~'~""' Name: i_~.i.~r~, r-Jrir~r;ur Title: ~+SSt$+,.~„i ,,;;~:~ r~s Aden' PURCHASER: Orange County, North Carolina 208 S. Cameron Street Hillsborough, NC 27278 Attention: Ken Chavious, Finance Director Fax No.: (919) 644-3324 ~-~ L~'`-~ By: Name: ~:•I~enneth T. Chavious Title: (Seal) Attest: By: Name: Donna Baker Title: Clerk to the Board .List of Exhibits: Exhibit A -- Acquisition Fund and Account Control Agreement Schedule 1 -- Form of Disbursement Request Schedule 2 -- Arbitrage and Tax Certificate Exhibit B-1 -- Schedule of Property Exhibit B-2 -- Installment Payment Schedule Exhibit C -- Incumbency Certificate Exhibit D -- Opinion of Counsel Form Exhibit E -- Acceptance Certificate Exhibit F -- Notice and Acknowledgement of Assignment #765698v2 (BAPCCJN Carolina Installment Purch Agmt) 21 ExgISIT A ACQUISITION FUND AND ACCOUNT CONTROL AGREEMENT This Acquisition Fund and Account Control Agreement, dated as of February 9, 2007, by and among Banc of America Public Capital Corp, a Kansas corporation (hereinafter referred to as "Lender', Orange County, North Carolina, a political subdivision of the State of North Carolina (hereinafter referred to as "Purchaser's and Bank of America, N.A., a national banking association (hereinafter referred to as "Acquisition Fund Custodian'. - ~- ~ Reference is made to that certain Equipment Installment Financing Agreement, dated as of February 9, 2007 between Lender and Purchaser (the "Purchase Agreement', covering the acquisition of certain Equipment described therein (the "Equipment'. It is a requirement of the Purchase Agreement that the Equipment Cost of the Equipment (in an amount not to exceed $842,038.00) (the "Acquisition Amount's be deposited into an escrow under terms satisfactory to Lender, for the purpose of fully funding the Purchase Agreement, and providing a mechanism for the application of such amounts to the purchase of and payment for the Equipment. The parties agree as follows: L Creation of Acquisition Fund. (a) There is hereby created a special trust fund to be known as the "Orange County Acquisition Fund" (the "Acquisition Fund's to be held in trust by Acquisition Fund Custodian for the purposes stated herein, for the benefit of Lender and Purchaser, to be held, disbursed and returned in accordance with the terms hereof. (b) Acquisition Fund Custodian shall invest and reinvest moneys on deposit in the Acquisition Fund in Qualified Investments in accordance with written instructions received from Purchaser. Purchaser shall be solely responsible for ascertaining that all proposed investments and reinvestments are Qualified Investments and that they comply with federal, state and local laws, regulations and ordinances governing investment of such funds and for providing appropriate notice to Acquisition Fund Custodian for the reinvestment of any maturing investment. Accordingly, neither Acquisition Fund Custodian nor Lender shall be responsible for any liability, cost, expense, -loss or claim of any kind, directly or indirectly arising out of or related to the investment or reinvestment of all or any portion of the moneys on deposit in the Acquisition Fund, and Purchaser agrees to and does hereby release Acquisition Fund Custodian and Lender from any such liability, cost, expenses, loss or claim. Interest on the Acquisition Fund shall become part of the Acquisition Fund, and gains and losses on the investment of the moneys on deposit in the Acquisition Fund shall be borne by the Acquisition Fund. For purposes of this agreement, "Qualified Investments" means any investments which meet the requirements of North Carolina General Statutes § 159-30. (c) Unless the Acquisition Fund is earlier terminated in accordance with the provisions of paragraph (d) below, amounts in the Acquisition Fund shall be disbursed by Acquisition Fund Custodian in payment of amounts described in Section 2 hereof upon receipt of written authorization(s) from Lender, as is more fully described in Section 2 hereof. If the #765698v2 (BAPCC/N Carolina Installment Purch Agent) A-1 amounts in the Acquisition Fund are insufficient to pay such amounts, Purchaser shall provide any balance of the funds needed to complete the acquisition of the Equipment. Any moneys remaining in the Acquisition Fund after twelve (12) months from the date hereof (the "Acquisition Period's shall be applied as provided in Section 4 hereof. (d) The Acquisition Fund shall be terminated at the earliest of (i) the final distribution of amounts in the Acquisition Fund or (ii) written notice given by Lender of the occurrence of a default or termination of the Purchase Agreement due to non-appropriation. (e) Acquisition Fund Custodian may act in reliance upon any writing or instrument or signature which. it, in good faith, believes to be genuine and may assume the validity and 'accuracy of any statement' or 'assertion contained in-such a-writing or instrument. Acquisition Fund Custodian shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instrument nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the receipt of such moneys; instruments or other documents received by it as Acquisition Fund Custodian, and for the disposition of the same in accordance herewith. (f) Unless Acquisition Fund Custodian is guilty of gross negligence or willful misconduct with regard to its duties hereunder, to the extent permitted by applicable law, Purchaser agrees to and does hereby release and indemnify Acquisition Fund Custodian and hold it harmless from any ~rld all claims; liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense, fees or charges of any character or nature, which it may incur or with which it maybe threatened by reason of its acting as Acquisition Fund Custodian under.this agreement; and in connection therewith, does to the extent permitted by law indemnify Acquisition Fund Custodian against any and all expenses; including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or resisting any claim. Acquisition Fund Custodian shall be vested with a lien on and is hereby granted a security interest in all property deposited hereunder, for indemnification, for reasonable attorneys' fees, court costs, for any suit, interpleader or otherwise, or any other expense, fees or charges of any character or nature, which maybe incurred by Acquisition Fund Custodian by reason of disputes arising between Purchaser and Lender as to the correct interpretation of the Purchase Agreement and instructions given to .Acquisition Fund Custodian hereunder, or otherwise, with the right of Acquisition Fund Custodian, regardless of the instructions aforesaid, to hold the said property until and unless said additional expenses, fees and charges shall be fully paid. (g) If Purchaser and Lender shall be in disagreement about the interpretation of the Purchase Agreement, or about the rights and obligations, or the propriety of any action contemplated by Acquisition Fund Custodian hereunder, Acquisition Fund Custodian may, but shall not be required to, file an appropriate civil action to resolve the disagreement. Acquisition Fund Custodian shall be reimbursed by Purchaser for all costs, including reasonable attorneys' fees, in connection with such civil action, and shall be fully protected in suspending all or part of its activities under the Purchase Agreement until a final judgment in such action is received. (h) Acquisition Fund Custodian may consult with counsel of its own choice and shall have full and complete authorization and protection with the opinion of such counsel. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-2 Acquisition Fund Custodian shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by its willful misconduct. (i) Purchaser shall reimburse Acquisition Fund Custodian for all reasonable costs and expenses, including those of Acquisition Fund Custodian's attorneys, agents and employees incurred for extraordinary administration of the Acquisition Fund and the performance of Acquisition Fund Custodian's powers and duties hereunder in connection with any Event of Default under the Purchase Agreement, or in connection with any dispute between Lender and Purchaser concerning the Acquisition Fund. 2. Acquisition of Property. (a) Acquisition Agreements. Purchaser will arrange for, supervise and provide for, or cause to be supervised and provided for, the acquisition of the Equipment, with moneys available in the Acquisition Fund. Purchaser represents the estimated costs of the Equipment are within the funds estimated to be available therefor, and Lender makes no warranty or representation with respect thereto. Lender shall have no liability under any of the acquisition or construction contracts. Purchaser shall obtain all. necessary permits and approvals, if any, for the acquisition, equipping and installation of the Equipment, and the operation and maintenance thereof. (b) Authorized Acquisition Fund Disbursements. Disbursements from the Acquisition Fund shall: be ~ made for the purpose of paying (including the reimbursement to Purchaser for advances from its own funds to accomplish the purposes hereinafter described) the cost of acquiring the Equipment. (c) Requisition Procedure. No disbursement from the Acquisition Fund shall be made unless and until Lender has approved such requisition. Prior to disbursement from the Acquisition Fund there shall be filed with Acquisition Fund Custodian a requisition for such payment in the form of Disbursement Request attached hereto as Schedule 1, stating each amount to be paid and the name of the person, firm or corporation to whom payment thereof is due. Each such requisition shall be signed by an authorized representative of Purchaser (an "Authorized Representative's and by Lender, and shall be subject to the following: 1. Delivery to Lender of a certificate of Purchaser to the effect that: (i) an obligation in the stated amount has been incurred by Purchaser, and that the same is a proper charge against the Acquisition Fund for costs relating to the Equipment identified n.the Purchase:Agreement, and has not beenpaid; (ii) the Authorized Representative has no notice of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages,. conditional sales contracts or security interest which should be satisfied or discharged before such payment is made; (iii) such requisition contains no item representing payment on account, or any retained percentages which Purchaser is, at the date of such certificate, entitled to retain; and (iv) the Equipment is insured in accordance with the Purchase Agreement. 2. Delivery to Lender of an Acceptance Certificate executed by Purchaser, together with any purchase agreement assignment or bill of sale and invoice therefor as required by Sections 3.04 and 5.01 of the Purchase Agreement referenced above; #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-3 3. The disbursement shall occur during the Acquisition Period set forth in the Schedule; 4. There shall exist no Event of Default (nor any event which, with notice or lapse of time or both, would become an Event of Default); and 5. No material adverse change in Purchaser's or any guarantor's financial condition shall have occurred since the date of the Purchase Agreement. 3. .Deposit to Acauisition Fund. Upon satisfaction of the conditions contemplated in the Purchase Agreement, Lender will cause the Acquisition Amount to be deposited in the Acquisition-Fund. Purchaser agrees to pay any costs with respect to the Equipment in excess of amounts available therefor in the Acquisition Fund. 4. Excessive Acquisition Fund. Following the final disbursement from the Acquisition Fund at the end of the Acquisition Period, or termination of the Acquisition Fund as otherwise provided herein, Acquisition Fund Custodian shall transfer any remainder from the Acquisition Fund to Lender. for application to amounts of the principal component of Installment Payments owed under the Purchase Agreement. 5. Security Interest. Acquisition Fund Custodian and Purchaser acknowledge and agree that the Acquisition Fund and all proceeds °thereof -are being held by Acquisition Fund- Custodian for disbursement or return as set forth herein. Purchaser hereby grants to Lender a first priority perfected security interest in the Acquisition Fund, and all proceeds thereof, and all investments made with any amounts in the Acquisition Fund. If the Acquisition Fund, or any part thereof, is converted to investments as set forth in this agreement, such investments shall be made in the name of Acquisition Fund Custodian and Acquisition Fund Custodian hereby agrees to hold such investments as bailee. for Lender so that Lender is deemed to have possession of such investments for the purpose of perfecting its security interest. 6. Control of Acquisition Account. In order to perfect Lender's security interest by means of control in (i) the Acquisition Fund established hereunder, (ii) all securities entitlements, investment property and other financial assets now or hereafter credited to the Acquisition Fund; (iii) all of Purchaser's rights in respect of the Acquisition Fund, such securities entitlements, investment property and other financial assets, and (iv) all products, proceeds and revenues of and from any of the foregoing personal property (collectively, the "Collateral', Lender, Purchaser and Acquisition Fund Custodian further agree as follows: (a) All terms used in this Section 6 which aze defined in the Commercial Code of the state of North Carolina (the "Commercial Code's but aze not otherwise defined herein shall have the meanings assigned to such terms in the Commercial Code, as in effect on the date of this Agreement. (b) Acquisition Fund Custodian will comply with all entitlement orders originated by Lender with respect to the Collateral, or any portion of the Collateral, without further consent by Purchaser. #76569$v2 (BAPCC/N Carolina Installment Purch Agmt) A-4 (c) Acquisition Fund Custodian hereby represents and warrants (a) that the records of Acquisition Fund Custodian show that Purchaser is the sole owner of the Collateral, (b) that Acquisition Fund Custodian has not been served with any notice of levy or received any notice of any security interest in or other claim to the Collateral, or any portion of the Collateral, other than Lender's claim pursuant to this Agreement, and (c) that Acquisition Fund Custodian is not presently obligated to accept any entitlement order from any person with respect to the Collateral, except for entitlement orders that Acquisition Fund Custodian is obligated to accept from Lender under this Agreement and entitlement orders that Acquisition Fund Custodian, subject to the provisions of paragraph (e) below, is obligated to accept from Purchaser. (d) Without the prior written consent of Lender, Acquisition Fund Custodian will not enter into =any agreement by °which Acquisition' Fund Custodian -agrees to comply with any entitlement order of any person other than Lender or, subject to the provisions of paragraph (e) below, Purchaser, with respect to any portion or ali of the Collateral. Acquisition Fund Custodian shall promptly notify Lender if any person requests Acquisition Fund Custodian to enter into any such agreement or otherwise asserts or seeks to assert a lien, encumbrance or adverse claim against any portion or all of the Collateral. (e) Except as otherwise provided in this paragraph (e) and subject to Section 1(b) hereof, Acquisition Fund Custodian may allow Purchaser to effect sales, trades, transfers and exchanges of Collateral within the Acquisition Fund, but will not, without the prior written consent of Lender, allow Purchaser to withdraw any Collateral from'the Acquisition Fund except to disburse funds in accordance with Section 2(c) hereof. Acquisition Fund Custodian acknowledges that Lender reserves the right, by delivery of written notice to Acquisition Fund Custodian, to prohibit Purchaser from effecting any withdrawals (including withdrawals of ordinary cash dividends and interest income), sales, trades, transfers or exchanges of any Collateral held in the Acquisition Fund. Further, Acquisition Fund Custodian hereby agrees to comply with any and all written instructions delivered by Lender to Acquisition Fund Custodian (once it has had a reasonable opportunity to comply therewith) and has no obligation to, and will not, investigate the reason for any action taken by Lender, the amount of any obligations of Purchaser to Lender, the validity of any of Lender's claims against or agreements with Purchaser, the existence of any defaults under such agreements, or any other matter. (f) Purchaser hereby irrevocably authorizes Acquisition Fund Custodian to comply with all instructions and entitlement orders delivered by Lender to Acquisition Fund Custodian. - (g) Acquisition Fund Custodian will not attempt'to assert control, and does not claim and will not accept any security or other interest in, any part of the Collateral, and Acquisition Fund Custodian will not exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise charge or deduct from the Collateral any amount whatsoever. (h) Acquisition Fund Custodian and Purchaser hereby agree that any property held in the Acquisition Fund shall be treated as a financial asset under such section of the Commercial Code as corresponds with Section 8-102 of the Uniform Commercial Code, notwithstanding any contrary provision of any other agreement to which Acquisition Fund Custodian may be a party. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-5 (i) Acquisition Fund Custodian is hereby authorized and instructed, and hereby agrees, to send to Lender at its address set forth in Section 7 below, concurrently with the sending thereof to Purchaser, duplicate copies of any and all monthly Acquisition Fund statements or reports issued or sent to Purchaser with respect to the Acquisition Fund. 7. Miscellaneous. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Purchase Agreement. This Agreement may not be amended except in writing signed by all parties hereto. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument and each shall have the force and effect of an original and all of which together constitute, and shall be deemed to constitute, one and the same instrument. Notices hereunder shall be made in writing and shall be deemed"to have been duly`given when personally delivered or when deposited in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each party at its address below: If to Lender: Banc of America Public Capital Corp 2059 Northlake Pkwy., 4th Floor Mail Code: GA3-003-04-01 Tucker, CA 30084 Attn: Contract Administration Fax: (770) 270-8454 If to Purchaser: Orange County, North Carolina 208 S. Cameron Street Hillsborough, NC 27278 Attn: Ken Chavious, Finance Director Fax: (919) 644-3324 If to Acquisition Fund Custodian: Bank of America, N.A. 113 W. Broad Street Statesville, NC 28677 Attn: Jan Keller Phone: (704) 838-4031 Fax: (704) 838-4035 #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-6 In Witness Whereof, the parties have executed -this Acquisition Fund and Account Control Agreement as of the date first above written. Banc of America Public Capital Corp, as Lender Orange County, North Carolina, as Purchaser B Y~ `r7~ T /''/~' G~ ,,, -~ Title: Bank of America, N.A., as Acquisition Fund Custodian By: Name: n l~ Title: . ~G'.~ By: Name: Kannath T f h,~VlOUS Title: ~ ~..^,~,t,~_g.i s~ ,.+ ~ r #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-7 In Witness Whereof, the parties have executed this Acquisition Fund and Account Control Agreement as of the date first above written. Banc of America Public Capital Corp, Orange County, North Carolina, as Lender as Purchaser By: By: Name: Name: Title: Title: Bank of America, N.A., as Acquisition Fund C todian .~-'''~ By. ./ Name:. ~'; c ~~r~/ '~ ~~~..y,., Title: ~.. j/~t~t'~. ~!`CS ~O~~i~ ~- #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-7 SCHEDULEI TO ACQUISITION FUND AND ACCOUNT CONTROL AGREEMENT FORM OF DISBURSEMENT REQUEST Re: Equipment Installment Financing Agreement, dated as of February 9, 2007 by and between Banc of America Public Capital Corp, as Lender and Orange County, North Carolina, as Purchaser (the "Purchase Agreement's In .accordance with the. terms of the Acquisition Fund and Account Control Agreement, dated as of February 9, 2007 (the "Acquisition Fund Agreement's by and among Banc of . America Public Capital Corp ("Lender', Orange County, North Carolina("Purchaser's and Bank of America, N.A. (the "Acquisition Fund Custodian', the undersigned hereby requests Acquisition Fund Custodian pay the following persons the following amounts from the Acquisition Fund created under the Acquisition Fund Agreement (the "Acquisition Fund's for the following purposes. Pavee's Name and Address Invoice Number ~ Dollar Amount ~ Purpose ~ The undersigned hereby certifies as follows: (i) An obligation in the stated amount has been incurred by Purchaser, and the same is a proper charge against the Acquisition Fund for costs relating to the Equipment identified in the Purchase Agreement, and has not been paid. Attached hereto is the original invoice with respect to such obligation. (ii) The undersigned, as Authorized Representative, has no notice of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made. -(iii) . ..This requisition. contains no item representing .payment on account, or any retained percentages which Purchaser is, at the date hereof, entitled to retain. (iv) The Equipment is insured in accordance with the Purchase Agreement. (v) No Event of Default, and no event which with notice or lapse of time, or both, would become an Event of Default, under the Purchase Agreement has occurred and is continuing at the date hereof. (vi) The disbursement shall occur during the Acquisition Period set forth in the Schedule applicable to such Equipment. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-8 (vii) No material adverse change in Purchaser's or any guarantor's financial condition shall have occurred since the date of the Purchase Agreement. Dated: ORANGE COUNTY, NORTH CAROLINA By: Disbursement of funds from the Acquisition Fund in accordance with. the foregoing Disbursement Request hereby is authorized BANC OF AMERICA PUBLIC CAPITAL CORP as Lender under the Purchase Agreement By: Title: Authorized Representative #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-9 SCHEDULE 2 ARBITRAGE AND TAX CERTIFICATE We, the undersigned K a n n e.t h T r h a V 1 G U S [name of signer) of the Oran e County. North Carolina ("Purchaser's and the Finance D, rector _ [title ofsignerJ of Purchaser, do hereby certify that this Certificate is issued pursuant to Sections 1.141-1 through 1.141-16, 1.148-0 through 1.148-11, 1.150-1 and 1.150-2 of the Treasury Regulations (the "Regulations' promulgated pursuant to the Internal Revenue Code of 1986, as amended (the "Code', to set forth Purchaser's reasonable expectations on the date of execution and delivery (the "Closing Date's of that certain Purchase Agreement (as hereinafter defined) and as to future events regarding the amount and use of the proceeds thereof. The Purchase Agreement 1. Each of the undersigned is charged, together with other officials and officers, with the responsibility for entering into the $842,038.00 Equipment Instalhnent Financing Agreement dated as of February 9, 2007, including the Schedule of exhibits thereto (the "Purchase Agreement's between Purchaser and Banc of America Public Capital Corp, an affiliate of Bank of America, N.A. ("Lender', which is authorized pursuant to Section 160A-20 of the North Carolina General Statutes, and-a resolution adopted by Purchaser on ,~;Decemner 1_2, 2006 (the "Resolution'. This certificate shall constitute a document related to the Purchase Agreement. This certificate is given with the understanding that it may be relied upon by (`~ ~'fTE~nT(il • ~ ~ Tug ~ ~V !name of counsel or firm providing Opinion] lri rendering 1tS Opinion Of even date herewith. 2. The. Purchase Agreement is being entered into to finance the cost of certain Equipment described in the Purchase Agreement. As contemplated by the Purchase Agreement, Lender will advance the Equipment Cost to Acquisition Fund Custodian described in that certain Acquisition Fund and Account Control Agreement dated as of the date hereof between Purchaser and Lender (the "Acquisition Fund Agreement's in order for Purchaser to purchase the Equipment, and Purchaser will agree to make installment payments under the Purchase Agreement (the "Installment Payments' to Lender. The Equipment will be used for a public purpose of Purchaser. Proceeds 3. Purchaser will receive from Lender as a result of the financing of the Equipment as contemplated by the Purchase Agreement $842,038.00 (the "Equipment Proceeds'. Pursuant to the Acquisition Fund Agreement, and for the purpose of meeting their obligations under the Purchase Agreement and assuring Purchaser the availability of moneys needed to pay the Equipment Costs when due, Purchaser and Lender have entered into the Acquisition Fund Agreement. The Acquisition Fund Agreement provides that Lender shall deposit the "Equipment Proceeds" into the Acquisition Fund to be held, invested and disbursed as provided therein. Purchaser will pursue the acquisition of the Equipment and the expenditure of the Equipment Proceeds with due diligence. Completion of the acquisition of the Equipment is #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-10 expected to occur prior to twelve (12) months from the date hereof. Purchaser has entered into, or will enter into within six months after the date hereof, binding contracts or commitments obligating the expenditure of at least five percent (5%) of the Equipment Proceeds. At least eighty-five percent (85%) of the Equipment Proceeds will be expended to acquire the Equipment within three years after the date hereof. 4. The total cost of the Equipment is anticipated to be equal to the Equipment Proceeds. It is not anticipated that any proceeds from the issue will be used to pay the expenses of issuing the Purchase Agreement obligations. Equipment 5. The Equipment Proceeds and anticipated investment earnings on such proceeds do not exceed the amount necessary to complete the acquisition of the Equipment. 6. All Equipment financed by the Purchase Agreement will be owned by Purchaser in accordance with Section 141 of the Code. Purchaser represents and covenants that while the Purchase Agreement is in effect, it will not sell, lease or otherwise dispose of any portion of the Equipment (except that a portion of the Equipment maybe disposed of in the normal course such. as by reason of obsolescence and normal wear and tear) without providing to Lender an opinion of bond counsel that such sale, lease or other disposition will not adversely affect the exclusion ofthe-interest. portion of the Installment Payments made under the Purchase Agreement from the gross income of Lender for federal income tax purposes. Yield 7. Purchaser represents that no other obligations of Purchaser (1) were or will be sold within 15 days of the Closing Date of the Equipment as contemplated by the Purchase Agreement; (2) are being .sold pursuant to a plan of financing common with the sales contemplated by the Purchase Agreement; and (3) are payable from substantially the same source of funds as the Purchase Agreement. 8. For purposes of this Certificate, "yield" means yield computed by the actuarial method using a 360-day year and semi-annual compounding, resulting in a discount rate which, when used in computing the present worth of all payments of principal and interest to be paid on an obligation, .produces an amount equal to the issue price, fair market value, present value or . purchase price thereof, as appYicable, and is determined in all respects in accordance with Section 148 of the Code and the Regulations. 9. As of the Closing Date, Purchaser expects that the purchase price of $842,038.00 is the issue price of the obligations under the Purchase Agreement to the public (excluding bond houses, brokers and other intermediaries). Based upon such price, Purchaser expects the yield on the Purchase Agreement to be computed as 3.60%. Arbitrage Certifications 10. No sinking fund has been established in connection with the payment of the principal of and interest under the Purchase Agreement, and no other similar fund or reserve or #765698v2 (BAPCGN Carolina Installment Purch Agmt) A-11 replacement fund has or will be created or established, nor does Purchaser expect to create or establish such a fund. Purchaser will pay Installment Payments directly to Lender on the due dates thereof. 11. The Purchase Agreement has a weighted average maturity of 2.695 years. As of the Closing Date, Purchaser expects that the term of the Purchase Agreement is not longer than reasonably necessary for the governmental purpose of the Purchase Agreement. As of the Closing Date, Purchaser does not expect to have available amounts (within the meaning of Section 1.148-1(c)(4) of the Regulations) during the period in which the Purchase Agreement is in effect. 12. ,Purchaser .acknowledges its. rebate obligations under Section. 148 of the Code. Purchaser will maintain such records as to the investments and earnings on the Equipment Proceeds as may be necessary and appropriate to determine the amount, if any, that it is required to rebate to the U.S. Treasury because the earnings on such investments exceed the amount that would have been earned if such proceeds had been invested at the yield payable as the interest portion of the Installment Payments on the Purchase Agreement. In the event that Purchaser invests any of the Equipment Proceeds or any investment proceeds in investments that have a yield in excess of the yield on the Purchase Agreement, Purchaser agrees to retain a rebate advisor to assist Purchaser in complying with Section 148 of the Code. Purchaser will make the calculations of its liability, file such reports and make any required payments at the time or times as are now or may hereafter be prescribed under Section 148 (or a successor provision) of the Code. 13. Except as expressly permitted hereunder, Purchaser will not use any gross proceeds of the Purchase Agreement to acquire investments with a yield considered as a class higher than the yield payable as the interest portion of the Installment Payments on the Purchase Agreement or to replace funds which are used to directly or indirectly acquire investments with a yield higher than the yield payable as the interest portion of the Installment Payments on the Purchase Agreement. 14. The Purchase Agreement is not and will not be part of a transaction or series of transactions that attempts to circumvent the provisions of Section 148 of the Code or the Regulations (a) enabling Purchaser to exploit the difference between tax-exempt and taxable interest rates to gain a material financial advantage; or (b) overburdening the market for tax- exempt obligations. Miscellaneous 15. At least 85% of the net Equipment Proceeds of the Purchase Agreement will be allocated to expenditures relating to the Equipment no later than three years from the date hereof and therefore not more than 50% of the proceeds of the Purchase Agreement will be invested in nonpurpose investments (as defined in Section 148(f)(6)(A) of the Code) having a substantially guaranteed yield for four years or more. 16. Purchaser has not received notice of deficiency or other notice from the Internal Revenue Service, the Department of Treasury or any other governmental agency or department #765698v2 (BAPCGN Carolina Installment Purch Agent) A-12 challenging or questioning in any way the status of the interest portion of the Installment Payments as being excludable from gross income for federal income tax purposes, nor has Purchaser been notified of any listing or proposed listing of it by the Internal Revenue Service as an issuer that may not enter into the type of transaction as contemplated by the Purchase Agreement. On the basis of the foregoing facts, estimates and circumstances in existence on the date hereof it is not expected that the proceeds of the Purchase Agreement will be used in a manner that would cause the Purchase Agreement to be "arbitrage bonds" under Section 148 of the Code and the Regulations. To the best of our knowledge and belief there are no other facts, estimates or circumstances which would materially change such expectations. Dated this ~ day of ~ehruary 2007, the same being the date of delivery of and payment for the Purchase Agreement. Orange County, North Carolina B ~G~ Y• Name: Kenneth T. Chav;rnrs Title: Finance Director #765698v2 (BAPCC/N Carolina Installment Purch Agmt) A-13 EXHIBIT B-1 SCHEDULE OF PROPERTY Re: Equipment Installment Financing Agreement, dated as of February 9, 2007, between Banc of America Public Capital Corp, as Lender, and Orange County, North Carolina, as Purchaser 1. Defined Terms. All terms used herein have the meanings ascribed to them in the above-referenced Equipment Installment Financing Agreement (the "Agreement "). 2. Equipment. The following items of Equipment are hereby included under this Schedule to the Agreement. Description Location (1) BACKHOE, (1) DUMPTRUCK AND RECYCLING BINS, 1514 EUBANKS ROAD EACH TO BE FURTHER DESCRIBED UPON DISBURSEMENT(S) CHAPEL HILL, NC 27514 The Equipment Costs for the Equipment subject to this Schedule shall not exceed $842,038.00. 3. Payment Schedule. (a) Installment Pavrnent Schedule. The Acquisition Amount for the Equipment is $842,038.00. The Installment Payments shall be in such amounts and payable on such dates as set forth in the Installment Payment Schedule attached to this Schedule as Schedule B-l. Installment Payments shall commence on the date on which the Equipment listed in this Schedule is accepted by Purchaser, as indicated in an Acceptance Certificate substantially in the form of Exhibit E to the Agreement or the date on which sufficient moneys to purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian, whichever is earlier. (b) Purchase Price Schedule. The Purchase Price on each Installment Payment date for the Equipment listed in this Schedule shall be the amount set forth for such Installment Payment date in the "Purchase Price" column of the Installment Payment Schedule attached to this Schedule (including the Installment Payment shown on the same line in the Installment Payment Schedule). 4. Representations. Warranties and Covenants. Purchaser hereby represents, warrants and covenants that its representations, warranties and covenants set forth in the Agreement are true and correct as though made on the date of commencement of Installment Payments on this Schedule. #765698v2 (BAPCC/N Carolina Installment Purch Agcnt) B-1-1 5. The Purchase Agreement. The terms and provisions of the Agreement are hereby incorporated into this Schedule by reference and made a part hereof. 6. A~xeement Proceeds. The Acquisition Amount which Lender shall pay to Acquisition Fund Custodian is $842,038.00, of which $ is for deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. It is expected that by twelve (12) months from the date of the Agreement, Purchaser will have taken possession of all items of Equipment shown above and that a Purchaser's Acceptance Certificate, or Acceptance Certificates, will be signed by Purchaser and delivered to Lender on or before twelve (12) months from the date of the Agreement. 7.. Acquisition Period. The Acquisition Period shall end at the conclusion of the 12~ month following the date hereof. 8. Purchase Term. The Purchase Term shall consist of the Original Term and 5 consecutive Renewal Terms; with the final Renewal Term ending on January 9, 2012. 9. Optional Prepayment Date. For purposes of Section 4.01(b) of the Agreement, the Optional Prepayment Commencement Date is May 9, 2007. 10. Pre-Payment Premium. On any Installment Payment date upon 30 days notice, Purchaser may prepay in full. all amounts then .outstanding under the Agreement, including accrued interest, principal balance, other unpaid charges, with no penalty. 11. Contract Rate. The Contract Rate for this Schedule is 3.60%. 12. Registration. Any Equipment that is a motor vehicle is to be registered and titled as follows: Any Equipment that is a motor vehicle is to be registered and titled as follows: (a) Registered Owner: Orange County, North Carolina 208 S. Cameron Street Hillsborough, NC 27278 (b) Lienholder: Banc of America Public Capital Corp • 2059 Northlake Pkwy., 4th Floor Mail Code GA3-003=04=01 Tucker, Georgia 30084 Purchaser shall be responsible for the correct titling of all Equipment purchased hereunder. Purchaser will cause the original Certificates of Title to be delivered to Lender for retention in Lender's files throughout the Purchase Term. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) B-1-2 LENDER: Banc of America Public Capital Corp 2059 Northlake Pkwy., 4th Floor Tucker, Georgia 30084 Attention: Contract Administration Fax No.: (770) 270-8454 By: ~;~~, Name: ~ta~; ur~,;.,~. Title: =+~~s'rws ~,,'r,- _~r~~~n.F:~°~. PURCHASER: Orange County, North Carolina 208 S. Cameron Street Hillsborough, NC 27278 Attention: Ken Chavious, Finance Director Fax No.: (919) 644-3324 By: ~~®~-L ~~ Name: kP•,npth T~ Chav~ads Title: (Seal) Attest: By: Name: Beaaa Baker Title: Clerk to Board #765698v2 (BAPCC/N Carolina Installment Porch Agmt) B-1-3 EXHIBIT B-2 INSTALLMENT PAYMENT SCHEDULE Re: Equipment Installment Financing Agreement, dated as of February 9, 2007, between Banc of America Public Capital Corp, as Lender, and Orange County, North Carolina, as Purchaser Purchaser: Orange County, North Carolina Purchase Term: 60 Months Purchase Price: $842,038.00 .._ _ .... Interest Rate: 3.60% Installment Payment Date Installment P~o»t Interest Portion Principal Portion Outstanding Balance Purchase Puce 02/09/07 0.00 0.00 0.00 842,038.00 842,038.00 05/09/07 46,187.04 7,578.34 38,608.69 803,429.31 803,429.31 08/09/07 46,187.04 7,230.87 38,956.17 764,473.14 764,473.14 11/09/07" 46,187.04 6,880.26 39,306.78 725,166.36 725,166.36 02/09/08 46,187.04 6,526.50 39,660.54 685,505.82 685,505.82 05/09/08 46,187.04 6,169.55 40,017.48 645,488.34 645,488.34 08/09/08 46,187.04 5,809.40 40,377.64 605,110.70 605,110.70 11/09/08 .46,187.04 5,446.00 40,741.04 564,369.66 564,369.66 02/09/09 46,187.04 5,079.33 41,107.71 523,261.95 523,261.95 05/09/09 46,187.04 4,709.36 41,477.68 481,784.27 481,784.27 08/09/09 46,187.04 4,336.06 41,850.98 439,933.29 439,933.29 11/09/09 46,187.04 3,959.40 42,227.64 397,705.65 397,705.65 02/09/10 46,187.04 3,579.35 42,607.69 355,097.97 355,097.97 05/09/10 46,187.04 3,195.88 42,991.16 312,106.81 312,106.81 08/09/10 46,187.04 .2,808.96 43,378.08 268,728.74 268,728.74 11/09/10 46,187.04 2,418.56 43,768.48 224,960.26 224,960.26 02/09/11 46,187.04 2,024.64 44,162.39 180,797.86 180,797.86 OS/U9l11 46,187.04 1,627.18 44,559.86 136,238.01 136,238.01 08/09/11 46,187.04 1,226.14 44,960.90 91,277.11 91,277.11 11/09/11 46,187.04 821.49 45,365.54 45,911.57 45,911.57 01/09/12 46,187.04 275.47 45,911.57 0.00 0.00 TOTAL 923,740.76 81,702.76 842,038.00 Prepayment Premium for purposes of Section 4.01(b) is 0%. For purposes of this Agreement, "Taxable Rate," with respect to the interest component of Installment Payments, means an annual rate of interest equal to 5.6160%. #765698v2 (BAPCC/N Carolina Installment Purch Agmt) C-1 ORANGE COUNTY,-NORTH CAROLINA sy: =G~' C- ~~ Name: I[cnnc+h T f'I-havi ni~c Title: Ginanra flirartnr #765698v2 (BAPCC/N Carolina Installment Purch Agmt) C-2 EXHIBIT C INCUMBENCY CERTIFICATE The undersigned, a duly elected "and acting r~_T ~~tT C~ ezk_- [Secretary] [City Clerk] (County Clerk] of Orange County, North Carolina("Purchaser's certifies as follows: A. The following listed persons are duly elected and acting officials of Purchaser (the "Off~cials'~ in the capacity set forth opposite their respective names below and that the facsimile signatures are true and correct as of the date hereof; B. The Officials are duly authorized, on behalf of Purchaser, to negotiate, execute and deliver the Equipment Installment Financing Agreement dated as of February 9, 2007 and the Schedule thereunder (the "Agreement's by and between Purchaser and Banc of America Public Capital Corp, and the Agreement is a binding and authorized Agreement of Purchaser, enforceable in all respects in accordance with its terms. Name of Official Title Signature Finance Director Date: ~gbr arv 7th 2007 By: ~ 1-~ r Name: Donna Baker Title: Clerk to Board (The witnessing signer of this Certificate cannot be listed above as authorized to execute the Agreements.) #765698v2 (BAPCC/N Carolina Installment Purch Agmt) C-3 EXHIBIT D LAW OFFICES COLEMAN, GLEDHILL, HARGRAVE & PEEK A PROFESSIONAL CORPORATION 129 E. TRYON STREET' P. O. DRAWER 1529 HILLSBOROUGH, NORTH CAROLINA 27278 919.732-2196 FAX 919.732-7997 February 7, 2007 www.cghp-law.com Banc of America Public Capital Corp 555 California Street, 4th Floor San Francisco, California 94104 SAMUEL E. COLEMAN GEOFFREY E. GLEDHILL DOUGLASHARGRAVE LEIGH ANN PEEK BRIAN M.FERRELL Re: Equipment Installment Financing Agreement, dated as of February 7, 2007, between Banc of America Public Capital Corp, as Lender, and Orange County; North Carolina, as Purchaser Ladies and Gentlemen: We are legal counsel for Orange County, North Carolina ("Purchaser "). We have examined (a) an executed counterpart of the Equipment Installment Financing Agreement, dated as of February 7, 2007; and Exhibits thereto by and between Banc of America Public Capital Corp (s`Lender ") and Purchaser (the "Agreement "), which, among other things, provides for the financing of certain property listed in the Schedule (the "Equipment") and a certain Acquisition Fund and Account Control Agreement among Lender, Purchaser, and Bank of America, N.A. as Acquisition Fund Custodian, dated February 7, 2007 (the "Account Fund Agreement "), (b) an executed counterpart of the resolutions of Purchaser which, among other things, authorize Purchaser to execute the Agreement and the Schedule and (c) such other opinions, documents and matters of law as we have deemed necessary in connection with the following opinions. The Agreement and the Schedule, together with the Installment Payment Schedule attached to the Schedule, are herein referred to collectively as the "Agreement ", and the Agreement and the Acquisition Fund Agreement are referred to collectively as the "Transaction Documents ". Based on the foregoing, we are of the opinion that: 1. Purchaser is a body .politic and corporate, a political subdivision of the State of North Carolina; duly organized and existing under the laws of the State of North Carolina. 2. Purchaser has the requisite power and authority to acquire and finance the Equipment and to execute and deliver the Transaction Documents and to perform its obligations under the Agreement. 3. The Transaction Documents have been duly authorized, approved, executed and delivered by and on behalf of Purchaser and the Transaction Documents are valid and binding obligations of Purchaser enforceable in accordance with their respective terms, except as enforcement thereof maybe limited by bankruptcy, insolvency and other similar laws affecting F:\Lisa\lette~s\Banc of America Public Capital Corp opin ltr.doc Page 2 February 7, 2007 the enforcement of creditors' rights generally and by general equitable principles.. To the extent that remedies under the Transaction Documents require enforcement by a court of equity, the enforceability thereof maybe limited by such principles of equity as the court having jurisdiction may impose. Pursuant to N.C. Gen. Stat. § 160A-20, no deficiency judgment may be rendered against Purchaser in the event of a breach by Purchaser of its obligations under the Transaction Documents, including Purchaser's obligation to make Installment Payments under the Transaction Documents, and the taxing power of Purchaser is not pledged, and may not be pledged, to pay any obligation of Purchaser .under the Transaction Documents. Under North Carolina law, the recovery of attorneys' fees is limited by and subject to the procedures and limitations set forth in Section 6-21.2 of the General Statutes of North Carolina, as amended. We have assumed for purposes of all of our opinions contained herein that Lender and Bank of America, N.A., as Acquisition Fund Custodian, will exercise their rights under the Transaction Documents in good faith and in a commercially reasonable manner. 4. The authorization, approval, execution and delivery of the Transaction Documents and all other proceedings of Purchaser relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, public bidding laws and all other applicable State or federal laws. 5. There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Transaction Documents or the security interest of Lender or its assigns, as the case may be, in the Equipment or other collateral thereunder. 6. With respect to the Transaction Documents, our services as counsel to the Purchaser have been limited to rendering the foregoing opinion based on our review of such proceedings and documents as we deem necessary. We .have not made any investigation concerning the Purchaser's operations, condition or financial resources. We express no opinion (a) as to the Purchaser's ability to provide for payments due under the Transaction Documents or (b) as to the accuracy, completeness or fairness or any information that may have been relied upon by anyone in making a decision to enter into the Transaction Documents or to purchase any interest. in the Transaction Documents. All capitalized terms herein shall have the same meanings as in the Transaction Documents unless otherwise provided herein. Lender and its successors and assigns, and any counsel rendering an opinion on the tax-exempt status of the interest components of the Installment Payments, are entitled to rely on this opinion. Very truly yours, COLEMAN, GLEDHILL, HARGRAVE & PEEK, P.C. F:\Lisa\letters\Banc of .4inerica Pubtic Capital Corp opin Itr.doc RESOLUTION AUTHORIZING INSTALLMENT FINANCING AGREEMENT FOR EQUIPMENT PURCHASES WHEREAS: Orange County ("County") has previously approved the purchase of equipment for use by County's Solid Waste Department and directed the Finance Director to seek financing for the purchases; WHEREAS, County has solicited competitive proposals from banks to provide the desired installment financing, and Banc of America Public Capital Corp. (the "Bank") has submitted the best proposal. BE IT THEREFORE RESOLVED by the Board of Commissioners of Orange County, North Carolina ("the Board"), as follows: 1. Determination To Proceed with Financing -County confirms its financing plans for the equipment purchases. County will carry out the fmancing plan with installment financing from the Bank, in accordance with the f nancing documents received from the Bank. 2. Direction To Execute Documents -The Board authorizes and directs the Board's Chair, the County Manager, the County Finance Director and the County Attorney to act on County's behalf and execute and deliver all appropriate documents (the "Documents") for the proposed financing. It is the Board's understanding that the Documents will be ~ in form substantially similar to those accompanying this Resolution and that the Documents are similar to those used in other financings provided to County and other North Carolina local governments. The execution and delivery of any document by an authorized officer will be conclusive evidence of such officer's approval of the final form of such document. The Documents in final form, however, must be consistent with the financing plan described in this Resolution and be C:\Documents and Settingsbhavious\L.ocal Settings\Temporary Intemet~iles\OLKB4\IZesol for Solid Waste Equip Financing.doc consistent with the Bank's proposal (or more advantageous to County in the Finance Director's determination). In addition, the Documents in final form must provide (a) for the amount financed by County not to exceed Eight Hundred Forty-two Thousand Thirty-eight Dollars ($842,038.00) and (b) for a financing term not to extend beyond fifty-nine months from closing. The Bank's proposal calls for an annual interest rate not to exceed 3.6% (in the absence of default, or a change in credit or tax status). 3. Authorization To Finance Director To Complete Closing. -The Board authorizes and directs the Finance Director to hold executed copies of all financing documents authorized or permitted by this Resolution in escrow on County's behalf until the conditions for their delivery have been completed to such officer's satisfaction, and thereupon to release the executed copies of such documents for delivery to the appropriate persons or organizations. Without limiting the generality of the foregoing, the Board specifically authorizes the Finance Director to approve changes to any Documents, agreements or certifications previously signed by County officers or employees, provided that such changes do not conflict with this Resolution or substantially alter the intent from that expressed in the form originally signed. The Finance Director's authorization of the release of any such document for delivery will constitute conclusive evidence of such officer's approval of any such changes. 4. Miscellaneous Provisions -All County officers and employees are authorized and directed to take all such further action as they may consider necessary or desirable in furtherance of the purposes of this Resolution. All such prior actions of County officers and employees are ratified, approved and confirmed. Upon the absence, unavailability or refusal to act of the County Manager, the Board's Chair. or the Finance Director, any other of such officers may assume any responsibility or carry out any function assigned in this Resolution. All other C:\Documents and Settings\chavious\Local Settings\Temporary Intemet~iles\OLKB4\Resol for Solid Waste Equip Financing.doc ~ w Board proceedings, or parts thereof, in conflict with this Resolution are repealed, to the extent of the conflict. This Resolution takes effect immediately. * ~x I certify that the foregoing resolution was duly adopted at a meeting of the Board of Commissioners of Orange County, North Carolina, duly called and held on December 12, 2006, :..and that a quorum. was present and acting throughout such meeting. Such Resolution remains in full effect as of today. Dated this 1z;• day of December, 2006. ,~ ~ /l . ~~ ~ /e~~ Clerk Board of Commissioners Orange County, North Carolina C:\Documents and Settings\chavious\Local Settings\Temporary Internet~iles\OLI{B4\ltesol for Solid Waste Equip Financing.doc ~~ REIMBURSEMENT RESOLUTION -- EQUIPMENT ACQUISITION PROJECT WHEREAS, the Finance Officer has described to the Board the desirability of adopting a resolution, as provided under federal tax law, to facilitate the County's using proceeds of tax-exempt financing to restore the County's funds when the County makes capital expenditures prior to closing on the financing. BE IT RESOLVED by the Board of Commissioners of Orange .County, North Carolina, as follows: Section 1. The project is the acquisition of certain equipment, including the following: Caterpillar 325DL Excavator at a total cost of $280,527.00 Caterpillar Mode1730 Articulated Truck at a total cost of $346,043.00 33,200 18-gallon recycling bins at a total cost of $215,468.00 Section 2. The County intends to finance the project. The expected type of financing (which is subject to change) is installment financing under Section 160A-20 of the General Statutes. The expected maximum amount of bonds or other obligations to be issued or contracted for the project is $842,038. Section 3. The County intends that funds that have been advanced, or may be advanced, from the County's General Fund, or any other fund, for project costs will be reimbursed from the financing proceeds. Section 4. The County intends that the adoption of this resolution will be a declaration of this County's official intent to reimburse project expenditures from financing proceeds. . I certify that the foregoing resolution was duly ,adopted at a meeting of the Board of Commissioners of Orange County, North Carolina, duly called and held on December 12, 2006, and that a quorum was present and acting throughout such meeting. Such resolution remains in full effect as of today. Dated of December, 2006. Clerk, Board of ommissioners Orange County, North Carolina 96887v1 .. ~+ Form $Q3$-G Information Return for Tax-Exempt Governmental Obligations - Under Internal Revenue Code section 149(e) OMB No. 15x5-0720 (Rev. November 2000) - See separate Instructions. oepanment of the Treasury Caution: tf the issue rice is under 5100,000, use Form 8038-GC. Internal Revenue senrice P If Amended Return. check here 1 Issuer's name 2 3 Number and street (or P.O. box if mail is not delivered to street address) Roomisuite 4 Report number P.O. Box 8181 3 5 City, town, or post office, state, and ZIP code 6 Date of issue Hillsborough, NC 27278 02/09/07 7 Name of issue 8 CUSIP number Equipment Installment Fnancing Agreement & Schedule of Property dtd 029/07 Na 9 Name and title of officer or legal representative whom the IRS may call for more information 10 Telephone number of officer or legal representative Ken Chavious, Fnance Director ( 919 ) 245-2450 T e of Issue (checK a livable box es) and enter the issue rice) See instructions and attach schedule 1'f ^ Education 11 12 ^ Health and hospital 12 13 ^ Transportation 13 14 ^ Public safety 14 15 . ^ Environment (including sewage bonds) 15 16 . ^ Housing 16 17 ^ Utilities 17 18 Describe - BackFtoe, Dumptruck,~Recyaliing Bins 0 Other 1g 842,038.00 19 . If obligations are TANS or 12AN5, check box - ^ If obligations are BANS, check box '- ^ 20 If obli ations are in the form of a lease or installment safe, check box - • Descri tion of Obli ations. Corn lete for the entire issue for which this form is b ein filed. (a) Final maturity date (b) Issue price ic) Stated redemption price at maturity (d) Weighted average maturity (e) Yield 21 01/09/12 $ 842,038.00 $ 2.695 ears 3.60 % • . Uses of Proceeds of Bond Issue includin underwriters' discount 22 Proceeds used for accrued interest 22 0 23 column (b)) Issue price of entire issue (enter amount from line 21 23 842,038.00 24 . _ , Proceeds used for bond issuance costs. (including underwriters' discount) 24 0 25 Proceeds used for credit enhancement . 25 0 26 Proceeds allocated to reasonably required reserve or replacement fund 26 0 27 Proceeds used to currently refund prior issues 27 0 28 Proceeds used to advance refund prior issues 28 0 29 Total (add lines 24 through 28) 29• 0 30 . Nbnrefundin roceeds of the issue subtract line 29 from line 23 and enter amount here : 30 842,038.00 • - Descri tion of Refunded Bonds Com lete this art onl -for refundin bonds. 31 Enter the remaining weighted average maturity of the bonds to be currently refunded , - Na years 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . - Na years 33 Enter the last date on which the refunded bonds will be called . . - Na 34 Enter the date(s) the. refunded bonds were. issued .- . •. Na - , _ • Miscellaneous 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 35 0 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment corrtract (see instructions) 36a 0 b Enter the final maturity date of the guaranteed investment contract - 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a 0 b If this issue is a loan made from the proceeds of another tax-exempt issue, check box - ^ and enter the name of the issuer - and the date of the issue - 38 {f the issuer has designated the issue under section 265(b)(3xB)(i)(III) (small issuer exception), check box - ^ 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box - ^ 40 If the issuer has identified a hed e, check box . - ^ and statements, and to the best of my knowledge Under penalties of perjury, I declare that I have examined this return and accompanying schedules . and belief, they are true, correct, arx! complete. Sign ~ G Here , - ~~ 7 ~'~ ~ ' Kenneth T Chavious , Firrar>ce D:irecta Signature of issuer's authorized representative ate Type or print name and title For Paperwork Reduction Act Notice, see page 2 of the Instructions. Cat. No. 63773S Form 8038-G (Rev. »-20001